an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One of the hardest points to get across to the media about the ACA is why so many legal scholars think it should have easily survived without all the sturm und drang. The fact that most scholars think the ACA is constitutional has been widely reported. The why, not so much. It's proven hard for journalists to cope with the acres of precedent supporting complex regulatory statutes like the ACA. Apart from the occasional article on grain for home consumption and medical marijuana, the reality of a substantial web of precedent has proven difficult to convey.
Charles Lane's WaPo column of yesterday illustrates this by reducing the dispute over the ACA to a conflict of values. It's liberty vs. egalitarianism according to Lane (with an apparent assist from Stephen Carter). This is a good example of how some political theorists read the Constitution, as an abstract "ordering of values." But not lawyers. Funny thing is, we think the Constitution is actually a law. As law, the Constitution could only be effective across a wide range of disputes once it was implemented by the judiciary in a system of common law precedent. Lane's approach simply junks the common law in favor of going right to the supposedly underlying values. This has the effect of proving Amar's point that the only way the Court could invalidate the ACA is by ignoring decades of multiple precedents, something that courts do quite rarely.
Lane believes turnabout is fair play, invoking the overturning of, yes, decades of precedents during the New Deal. The justices that found themselves in the minority were arguably defending an abstract value, federalism, albeit one directly implicated by the constitutional plan. They thought the system of federalism would collapse unless a hard distinction was maintained between what was national and what was local. But Lane is missing that there is no real parallel between the pre-New Deal and post-New Deal precedents. Post-New Deal, the Court realized that it was not in the best position to defend federalism by making what amounted to policy decisions. The value the Court came to defend was not liberty or equality, but deference to Congress. Or, if you like, democracy.
The asymmetry between the pre and post-New Deal cases has a deeply practical side. The conservative jurists who opposed the New Deal predicted, in effect, value chaos. They were wrong. Those who support the post-New Deal cases don't predict value chaos if the ACA is overturned. That's not what happens when you don't defer to Congress. Some values may be vindicated tomorrow. But if the ACA is struck down the result could well be policy chaos of a kind we haven't experienced since the New Deal. That's what happens when the Court substitutes its judgment for Congress in the service of abstract values untamed by precedent. Posted
by Stephen Griffin [link]
The fear of "policy chaos" from a decision in validating the mandate is really quite silly. The anti-mandate arguments do not threaten any other existing federal laws. In this sense, the arguments are more modest than those embraced by the Court in Lopez and Printz, which did threaten other laws (even if only a few).
I don't know really if the arguments don't threaten other laws since who can tell? The PPACA seemed rather clearly constitutional but now there is doubt.
The "activity" / "nonactivity" rationale, e.g., is offered. But, people like Orin Kerr argue there isn't a clear line there, citing laws. So, maybe those laws are at risk somehow if that is the test.
The 11th Cir. didn't seem to think too much about the argument but found this law went too far. So, why wouldn't the ultimate ruling striking it down not open up the chance other laws might go too far? After all, opponents speak of the USSC making new law -- drawing new lines. What lines?
And, some of the opponents would be glad, since they don't merely think this law is a problem. BTW, let's not forget about the Medicaid case. That opens up a whole can of tax/spending law worms.
"The fact that most scholars think the ACA is constitutional has been widely reported. The why, not so much...
Funny thing is, we think the Constitution is actually a law. As law, the Constitution could only be effective across a wide range of disputes once it was implemented by the judiciary in a system of common law precedent."
In fact, the progressive legal elite do not believe the written Constitution is law. Instead, you rely upon progressive common law to evicerate and rewrite the document.
If the Supreme Court does not draw the line here, the progressive project of eliminating the Constitution's limitated enumerated powers in favor of a common law general police power will be complete.
In that case, we might as well tear up the document and stop the pretense that the courts do not decree our basic law.
Yes on the idea that non-lawyers do not understand the importance of a web of precedent. However, lawyers and professors seem to grossly overestimate the importance of precedent time and again. One would think it would be the constitutional scholars who would be most likely to have read and respected the ideas of legal realism, and to recognize major inflection points such as the New Deal and segregation as evidence that legal precedent is not always enough. Add to this the ridiculousness that is Flood v. Kuhn, and one would think no constitutional scholar would ever raise what amounts to precedent alone against a compelling argument for a change.
Our yodeler and his ilk who believe in the liberty to free ride healthcare rely upon "law office history" in efforts to interpret the Constitution via recreating original meanings even as circumstances have changed. It's as if originalists (and textualists) have the vapors when it relates to America's first African-American President as noted by Jack in his AP post.
Unknown's reference to " ... the ridiculousness that is Flood v. Kuhn ..." should be understood as a failed challenge by an African-American of a precedent established after Plessy v. Ferguson (despite the Civil War Amendments) even though Brown v. Board of Education had subsequently overcome Plessy before the Court addressed Flood. But what followed Flood opened the floodgates for all professional athletes of all races.
I think the broccoli just come with some liquor since the libs (and the sane conservatives, including one at this very blog) barely won, read the Medicaid provision somewhat narrowly and accepted the imho patently weak "mandate" argument as to CC ... this all skewers federal law, including probably in some unclear way existing law and policy ... in unknown ways.
Shag will have a lot more law review articles to read at least.
BTW, Roberts? Did he channel Charles Evan Hughes or what?!
I am going to start my reading with the Medicaid opinions.
Congress has blackmailed the states into assuming tens of billions in unfunded mandates by threatening existing funding for various entitlements and subsidies.
If this is no longer permissible under these opinions, that could be a sea change in federalism.
The immediate impact is that every GOP and many insolvent Dem state governments are likely to opt out of the Obamacare Medicaid mandates, which were supposed to expand rolls by roughly 20 million and, if Romneycare is any guide, probably far more.
Are these opinions retroactive? Can states begin to peel away the layers of mandates and decide what level of participation they want under Medcaid and other programs?
Lee J. Stang has a June 25, 2012 post at libertylawsite.org titled "Why Originalism Need the Virtues" which includes references to "Wick-burn." So I am looking forward to scholarly papers "anal-eye-zing" the ACA decision(s) with the usual spin of the usual suspects. In the meantime, I've been looking at the sour grapes at VC.
As for lunch today, I'm thinking of ordering a Justice Scalia martini - gin on the rocks with a sprig of broccoli - to accompany an Etna Italian Sausage Sub with Mushrooms, Peppers and Onions. Chow [sick!]